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Unofficial Opinion 97-7

Unofficial Opinion 97-7

February 6, 1997

To:

Representative District 37

Re:

Georgia statutes authorizing the Department of Public Safety to require applicants for a driver's license or identification card to submit fingerprints do not violate the constitutional rights of Georgia citizens.

This unofficial opinion is issued in response to the questions you have raised concerning the validity of O.C.G.A. §§ 40-5-28, 40-5-100, and 40-5-171. For the reasons set forth below, it is my conclusion that these provisions are constitutional.

At its 1996 session, the General Assembly amended O.C.G.A. § 40-5-28 and authorized the Georgia Department of Public Safety to "require applicants [for a driver's license] to submit fingerprints by means of an inkless fingerprint scanning device." Similar provisions apply to state identification cards. O.C.G.A. §§ 40-5-100(a)(11) and 40-5-171(a)(12). On October 1, 1996, the Department of Public Safety began to require that an applicant for a driver's license or identification card submit fingerprints in order to receive the license or identification card.

First, you have questioned whether the submission of fingerprints is a testimonial act compelled (by virtue of being required in order to obtain the license or identification card) in violation of a citizen's constitutionally-secured right not to be required to incriminate himself. The United States Supreme Court has ruled that the Fifth Amendment is limited in scope to actions which are testimonial in nature, and that

physical characteristics such as fingerprints are not testimonial, even in a criminal investigation. Schmerber v. California, 384 U.S. 757, 764 (1966), cited in Pennsylvania v. Muniz, 496 U.S. 582, 591 (1990). In the Court's analysis, fingerprints are categorized as a means of physical identification along with photographs, also authorized by Georgia law. Thus, because the fingerprints are not testimonial, the Fifth Amendment is not implicated. While the Georgia Constitution affords a broader protection against self-incrimination than does the United States Constitution, the state may, consistent with its provisions, take a substance naturally excreted by the human body. State v. Leviner, 213 Ga. App. 99 (1994). Thus, it would appear that an image of the skin patterns on one's fingertips, which can be obtained without any intrusion upon the body, may be lawfully required. Even if the constitutional provisions against self-incrimination were implicated, the citizen's submission to fingerprinting in order to obtain the license or identification card is a valid consent. See Dennis v. State, 226 Ga. 341, 343 (1970).

Second, you have asked whether the taking of the fingerprints is an unreasonable search or seizure prohibited by the Constitution. Most of the decisions in this area focus on the fingerprints as the fruit of an unreasonable detention (which is itself a prohibited seizure), rather than on the taking of the fingerprints themselves. See, e.g., Hayes v. Florida, 470 U.S. 811 (1985). However, in Davis v. Mississippi, 394 U.S. 721, 727-28 (1969), the Court applied Schmerber to the Fourth Amendment issues and concluded that, although Davis had been subjected to an unreasonable detention to obtain his fingerprints, the police could lawfully have set a scheduled time and required that he appear and submit to fingerprinting at that time, and that such a procedure would not have been constitutionally unreasonable. The Court reaffirmed that conclusion in United States v. Dionisio, 410 U.S. 1, 3 (1973). The Georgia Constitution contains the same provisions. Absent a detention by the State, a requirement that a citizen provide his fingerprints is not a violation of the Fourth Amendment or of the corresponding provisions of the Georgia Constitution. Moreover, because the protections against unreasonable searches and seizures may be waived by consent, the citizen's submission to fingerprinting in order to obtain the license or identification card would be valid. Dennis, 226 Ga. at 343.

Third, you have asked whether the taking of the fingerprints is a deprivation of property without due process of law. I find no case recognizing a property interest in a person's fingerprints. The right to a driver's license itself is only a qualified right. Dennis, 226 Ga. at 342. Thus, I conclude

that the requirement that the citizen provide the fingerprints is not a deprivation of property without due process of law.

Fourth, you have questioned whether the amendments deprive drivers of equal protection of the laws since only those desiring a driver's license or an identification card are required to provide fingerprints. Absolute uniformity is not required; it is sufficient that all who are similarly situated are treated alike. State v. Martin, 266 Ga. 244, 245-46 (1996).

Finally, you have questioned whether the maintenance of these records would violate the Privacy Act, 5 U.S.C. § 552a. Generally speaking, the Privacy Act applies only to the federal government, not to state agencies. Ortez v. Washington County, 88 F.3d 804, 810 (9th Cir. 1996). While the Act does apply to state and local governments with respect to the maintenance and disclosure of federal records made available to them, the fingerprints records addressed by this opinion are state, rather than federal, records. Thus, the Act would not limit the activities of the Department of Public Safety in this regard.

In sum, it is my unofficial opinion that the provisions of O.C.G.A. § 40-5-28, O.C.G.A. § 40-5-100(a)(11), and O.C.G.A. § 40-5-171(a)(12) authorizing the Department of Public Safety to require applicants for a driver's license or identification card to submit fingerprints do not violate the constitutional rights of Georgia citizens.